United States v. Almond , 205 F. App'x 25 ( 2006 )

Opinions of the United
2006 Decisions States Court of Appeals
for the Third Circuit
11-8-2006
USA v. Almond
Precedential or Non-Precedential: Non-Precedential
Docket No. 04-3683
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT
No. 04-3683
UNITED STATES OF AMERICA
v.
DARU ALMOND,
Appellant
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. No. 03-cr-00055)
District Judge: Honorable Cynthia M. Rufe
Submitted Under Third Circuit LAR 34.1(a)
November 6, 2006
Before: SLOVITER, CHAGARES, and NYGAARD, Circuit Judges
(Filed : November 8, 2006 )
OPINION
SLOVITER, Circuit Judge.
Daru Almond appeals from the order of the District Court denying his motion to
suppress evidence obtained from a search warrant. This appeal is limited to review of
that order.1
Almond pled guilty to possession with intent to distribute more than five grams of
cocaine base, in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(B) and one count of being a
felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1), preserving
his right to appeal the denial of the motion to suppress. He was sentenced to 120 months
imprisonment, a $2,500 fine, eight years of supervised release, and a $200 special
assessment.
Almond challenges both the action of the Magistrate Judge in issuing the search
warrant and the order of the District Court denying the motion to suppress.
The Magistrate Judge issued the contested search warrant for Almond’s house on
Sixteenth Street in South Philadelphia based on an affidavit that contained information
that two Philadelphia police officers, Louis Gregg and Raymond Tancredi, separately
responded to an anonymous tip that a man, described as a black male with braided hair,
wearing jeans and a grey jacket with black sleeves, had a gun on Tasker Street. When the
officers approached a man matching that description, later identified as Almond, he
began to run. Gregg observed a “black handled handgun” in Almond’s waistband as
1
This court has jurisdiction under 28 U.S.C. § 1291.
2
Almond ran. Supp. App. at 2. Almond ran into a house on Sixteenth Street and locked
the front door. The house was later identified as his residence. The police secured the
property until they received the search warrant. A short time thereafter, Almond
surrendered into police custody. After receiving the search warrant, police recovered
four handguns, seven grams of crack cocaine, a bullet-proof vest, narcotics packaging
material, and $17,657 cash.
Almond filed a motion to suppress the evidence obtained from the search warrant.
At the suppression hearing, Gregg and Tancredi, along with one defense witness,
testified. Based on the evidence presented, the District Court found that the affidavit
presented to the Magistrate Judge contained a substantial basis for finding probable cause
to search Almond’s residence. The District Court credited Gregg’s testimony that he saw
a gun with a black handle in Almond’s waistband before Almond ran into his house and
locked the door before either Gregg or Tancredi had reached it. Although Tancredi did
not see a weapon, he did see Almond push his hand into his waistband, at least two times,
which led him to believe that Almond was hiding a weapon. The District Court denied
the motion to suppress.
This court reviews factual findings of the District Court’s denial of a motion to
suppress for clear error, and we exercise plenary review of its application of the law to
those facts. United States v. Riddick, 156 F.3d 505, 509 (3d Cir 1998). In deciding
whether the affidavit for the warrant establishes probable cause, the Magistrate Judge
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should consider all of the circumstances set forth in the affidavit and make a common
sense determination. United States v. Williams 3 F.3d 69, 72 (3d Cir. 1993). Even if the
affidavit is not supported by probable cause, evidence will not be suppressed, under a
“good faith” exception, if the police acted in good faith when executing the warrant. Id.
at 73-74. We have stated that “[A] warrant issued by a magistrate normally suffices to
establish that a law enforcement officer has acted in good faith in conducting the search.”
Id. at 74 (citations and internal quotation marks omitted).
Almond argues that the search warrant was not supported by probable cause for
two reasons. First, that no negative inference should be made from the fact that Almond
ran from the police. Second, that Gregg could not have seen the gun, and the District
Court erred in making this finding. Almond also contends that even if Gregg saw a gun,
Gregg did not know whether Almond had a license to carry the gun. Therefore, there
was no basis to believe that any laws had been violated.
Almond’s arguments do not address the legal issue, which was whether the search
warrant itself, considering the totality of the circumstances, was supported by probable
cause. The facts necessary to support the search warrant arise not only from Almond’s
flight and the observation that he had a gun, but also from the fact that he resided in the
house he entered, that his possession of a firearm was a violation of his parole, and that
he did not have a license to possess a firearm.
Almond argues vigorously that Gregg did not see the gun, but the District Court’s
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finding of fact is reviewed for clear error. Although Almond asserts that Tancredi was
closer to Almond, both officers testified consistently that they were approximately next to
each other. Almond also asserts that Tancredi had a better view of Almond because he
was “coming from the side.” Almond’s Br. at 11. However, Almond was running away
from Tancredi, so it would be natural to assume that Almond had his back to Tancredi.
Gregg was to the left of Tancredi and Almond, heading at an angle towards Almond, and
would have had a frontal view of Almond when he turned. Gardner, the defense witness,
corroborated both Gregg’s and Tancredi’s testimony as to Almond’s location and
direction. Finally, Almond does not contest the assertion that he turned to look at
Tancredi. In sum, there is no basis to the claim that Gregg was mistaken or lying when
he testified that he saw Almond’s gun. The District Court did not clearly err when it
made this finding.
Almond contends that even if Gregg saw the gun, “[t]here is no indication that the
officers knew who the Appellant was, or whether or not he had a license to possess a
firearm[.]” Almond’s Br. at 12. The Government responds that a license to carry a
firearm is an affirmative defense to a weapons charge, so that the police were justified in
searching unless Almond proved that he had the license. Again, Almond’s argument is
without merit. Almond conceded at the hearing that if Gregg saw the gun, the warrant
was proper.
The search warrant was clearly supported by probable cause. The affidavit stated
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that a man matching the description from an anonymous tip was observed with a gun,
that he ran into his residence, that he did not have a license for the gun, and that by
possessing the weapon, he was in violation of his parole.
As the Government notes, acts that are innocent in isolation may collectively
amount to a reasonable suspicion. United States v. Nelson, 284 F.3d 472, 480 (3d Cir.
2002). Similarly, we have held that furtive hand movements used to conceal a weapon
were sufficient to support a finding of reasonable suspicion. United States v. Moorefield,
111 F.3d 10, 14 (3d Cir. 1997). We have also held that when an officer observed actions
he reasonably believed to be intended to conceal a weapon, he was justified in searching
for the weapon. United States v. Robertson, 305 F.3d 164, 170-71 (3d Cir. 2003). It
follows that the Magistrate Judge did not err in granting the search warrant.
Similarly, we reject Almond’s argument that “the warrant was so facially deficient
that it failed to particularize the place to be searched or the things to be seized.”
Almond’s Br. at 14. There is no basis for this court to conclude that the District Court’s
findings of fact were clearly erroneous. The affidavit was sufficiently detailed and
particularized, it relied on more than the allegation that Almond was armed and that he
fled. It also included the claims that Almond did not have a license to possess a firearm,
and that such possession was in violation of his parole. The District Court heard the
testimony of the officers and found them credible. The District Court did not err in
denying the motion to suppress.
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For the reasons set forth, we will affirm the judgment of conviction and sentence.
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